Mohamed Amersi v Charlotte Leslie

Defamation Act 2013 section 1(1) imposes a factual threshold of serious reputational harm. The court considered that cumulative harm may be assessed where substantially identical statements are published repeatedly. It cannot be assessed by combining the effects of different statements merely because they convey similar imputations.

A libel claimant must plead each statement relied on, its alleged meaning, and the facts said to establish serious harm. If the case depends on publication of the same or substantially the same statement, that must be pleaded clearly. Permission to appeal requires a realistic prospect of obtaining a materially different order, not merely establishing an error in the judge’s reasoning.

The claimant sued the defendants in libel over 16 memoranda circulated to persons associated with the Conservative Party. He alleged that the memoranda conveyed numerous defamatory imputations and caused serious harm to his reputation.

After claims concerning unidentified recipients were stayed, the High Court refused permission to amend, struck out the claim, and dismissed the action: [2023] EWHC 1368 (KB). The judge held that serious harm had to be pleaded separately for each publication and that the evidence disclosed no real prospect of proving it, including through onward republication.

The claimant sought permission to appeal. The central issues included whether section 1(1) permits aggregation of reputational harm across publications, whether onward publication can establish serious harm, and whether a further amendment should have been allowed.

1. Permission to appeal was refused. An appellant does not succeed merely by identifying an error of law in the reasons below. The error must be capable of producing a materially different decision or order.
2. The claimant had no real prospect of establishing serious harm from any individual initial publication. The High Court was entitled, on the amendment application, to apply the summary-judgment merits test to the available evidence. The direct evidence from recipients and the absence of a realistic prospect of further material evidence made the claimant’s case untenable. The same was true of the alleged onward publication, for which there was no tenable causal case or evidence of serious reputational harm.
3. Section 1(1). Warby LJ, with whom Underhill LJ agreed, considered that the High Court’s conclusion that serious harm must always be assessed publication by publication was arguably mistaken. In an appropriate case, the cumulative impact of multiple publications of the same, or immaterially different, statement might satisfy section 1(1). The court explained that [2023] EWCA Civ 219 did not decide the contrary. These observations could not affect this case.
4. The claimant had instead pleaded separate statements in separate memoranda, with separate meanings. Section 1(1) does not allow the harm caused by different statements to be aggregated merely because they convey the same, substantially the same, or similar allegations. A statement is distinct from the meaning or imputation it signifies. The Particulars also had to state clearly if the case was that the same or substantially the same statement had been published repeatedly. They did not do so.
5. The High Court was entitled to refuse a further opportunity to amend. Even on the more favourable legal approach considered by the Court of Appeal, the claimant had not formulated a plausible pleaded case and a further amendment would not have been a proportionate use of court resources.

• Court of Appeal (Civil Division): Permission to appeal was refused in [2023] EWCA Civ 1468.
• High Court, King’s Bench Division, Media and Communications List: Nicklin J refused permission to amend, struck out the libel claim, and dismissed the action: [2023] EWHC 1368 (KB).